Compilation of the Social Security Laws

EXAMINATION AND TREATMENT FOR EMERGENCY MEDICAL CONDITIONS
AND WOMEN IN LABOR[298]

Sec. 1867. [42 U.S.C. 1395dd](a) Medical
Screening Requirement.—In the case of
a hospital that has a hospital emergency department, if any individual
(whether or not eligible for benefits under this title) comes to the
emergency department and a request is made on the individual’s
behalf for examination or treatment for a medical condition, the hospital
must provide for an appropriate medical screening examination within
the capability of the hospital’s emergency department, including
ancillary services routinely available to the emergency department,
to determine whether or not an emergency medical condition (within
the meaning of subsection (e)(1)) exists.

(1) In general.—If any individual (whether or not eligible for benefits under
this title) comes to a hospital and the hospital determines that the
individual has an emergency medical condition, the hospital must provide
either—

(A) within the
staff and facilities available at the hospital, for such further medical
examination and such treatment as may be required to stabilize the
medical condition, or

(B) for transfer
of the individual to another medical facility in accordance with subsection
(c).

(2) Refusal
to consent to treatment.—A hospital is
deemed to meet the requirement of paragraph (1)(A) with respect to
an individual if the hospital offers the individual the further medical
examination and treatment described in that paragraph and informs
the individual (or a person acting on the individual’s behalf)
of the risks and benefits to the individual of such examination and
treatment, but the individual (or a person acting on the individual’s
behalf) refuses to consent to the examination and treatment. The hospital
shall take all reasonable steps to secure the individual’s (or
person’s) written informed consent to refuse such examination
and treatment.

(3) Refusal
to consent to transfer.—A hospital is
deemed to meet the requirement of paragraph (1) with respect to an
individual if the hospital offers to transfer the individual to another
medical facility in accordance with subsection (c) and informs the
individual (or a person acting on the individual’s behalf) of
the risks and benefits to the individual of such transfer, but the
individual (or a person acting on the individual’s behalf) refuses
to consent to the transfer. The hospital shall take all reasonable
steps to secure the individual’s (or person’s) written
informed consent to refuse such transfer.

(1) Rule.—If an individual at a hospital has an emergency medical condition
which has not been stabilized (within the meaning of subsection (e)(3)(B)),
the hospital may not transfer the individual unless—

(A)(i) the individual
(or a legally responsible person acting on the individual’s
behalf) after being informed of the hospital’s obligations under
this section and of the risk of transfer, in writing requests transfer
to another medical facility,

(ii) a physician
(within the meaning of section 1861(r)(1)) has signed a certification
that based upon the information available at the time of transfer,
the medical benefits reasonably expected from the provision of appropriate
medical treatment at another medical facility outweigh the increased
risks to the individual and, in the case of labor, to the unborn child
from effecting the transfer, or

(iii) if a physician
is not physically present in the emergency department at the time
an individual is transferred, a qualified medical person (as defined
by the Secretary in regulations) has signed a certification described
in clause (ii) after a physician (as defined in section 1861(r)(1)), in
consultation with the person, has made the determination described
in such clause, and subsequently countersigns the certification; and

(B) the transfer
is an appropriate transfer (within the meaning of paragraph (2)) to
that facility.

A certification described in clause (ii) or (iii) of subparagraph
(A) shall include a summary of the risks and benefits upon which the
certification is based.

(2) Appropriate
transfer.—An appropriate transfer to
a medical facility is a transfer—

(A) in which the
transferring hospital provides the medical treatment within its capacity
which minimizes the risks to the individual’s health and, in
the case of a woman in labor, the health of the unborn child;

(i) has available
space and qualified personnel for the treatment of the individual,
and

(ii) has agreed to
accept transfer of the individual and to provide appropriate medical
treatment;

(C) in which the
transferring hospital sends to the receiving facility all medical
records (or copies thereof), related to the emergency condition for
which the individual has presented, available at the time of the transfer,
including records related to the individual’s emergency medical
condition, observations of signs or symptoms, preliminary diagnosis,
treatment provided, results of any tests and the informed written
consent or certification (or copy thereof) provided under paragraph
(1)(A), and the name and address of any on-call physician (described
in subsection (d)(1)(C)) who has refused or failed to appear within
a reasonable time to provide necessary stabilizing treatment;

(D) in which the
transfer is effected through qualified personnel and transportation
equipment, as required including the use of necessary and medically
appropriate life support measures during the transfer; and

(E) which meets
such other requirements as the Secretary may find necessary in the
interest of the health and safety of individuals transferred.

(A) A participating
hospital that negligently violates a requirement of this section is
subject to a civil money penalty of not more than $50,000 (or not
more than $25,000 in the case of a hospital with less than 100 beds)
for each such violation. The provisions of section 1128A (other than
subsections (a) and (b)) shall apply to a civil money penalty under
this subparagraph in the same manner as such provisions apply with
respect to a penalty or proceeding under section 1128A(a).

(B) Subject to
subparagraph (C), any physician who is responsible for the examination,
treatment, or transfer of an individual in a participating hospital,
including a physician on-call for the care of such an individual,
and who negligently violates a requirement of this section, including
a physician who—

(i) signs a certification
under subsection (c)(1)(A) that the medical benefits reasonably to
be expected from a transfer to another facility outweigh the risks
associated with the transfer, if the physician knew or should have
known that the benefits did not outweigh the risks, or

(ii) misrepresents
an individual’s condition or other information, including a
hospital’s obligations under this section,

is subject to a civil money penalty of not more than $50,000
for each such violation and, if the violation is gross and flagrant
or is repeated, to exclusion from participation in this title and
State health care programs. The provisions of section 1128A (other than
the first and second sentences of subsection (a) and subsection (b))
shall apply to a civil money penalty and exclusion under this subparagraph
in the same manner as such provisions apply with respect to a penalty,
exclusion, or proceeding under section 1128A(a).

(C) If, after
an initial examination, a physician determines that the individual
requires the services of a physician listed by the hospital on its
list of on-call physicians (required to be maintained under section 1866(a)(1)(I))
and notifies the on-call physician and the on-call physician fails
or refuses to appear within a reasonable period of time, and the physician
orders the transfer of the individual because the physician determines
that without the services of the on-call physician the benefits of
transfer outweigh the risks of transfer, the physician authorizing
the transfer shall not be subject to a penalty under subparagraph
(B). However, the previous sentence shall not apply to the hospital
or to the on-call physician who failed or refused to appear.

(A) Personal harm.—Any individual who suffers
personal harm as a direct result of a participating hospital’s
violation of a requirement of this section may, in a civil action
against the participating hospital, obtain those damages available
for personal injury under the law of the State in which the hospital
is located, and such equitable relief as is appropriate.

(B) Financial loss to other medical facility.—Any medical facility that suffers a financial loss as a direct
result of a participating hospital’s violation of a requirement
of this section may, in a civil action against the participating hospital,
obtain those damages available for financial loss, under the law of
the State in which the hospital is located, and such equitable relief
as is appropriate.

(C) Limitations on actions.—No action may
be brought under this paragraph more than two years after the date
of the violation with respect to which the action is brought.

(3) Consultation
with quality improvement[299] organizations.—In considering
allegations of violations of the requirements of this section in imposing
sanctions under paragraph (1) or in terminating a hospital’s
participation under this title, the Secretary shall request the appropriate
quality improvement[300] organization (with a contract under part B of title XI)
to assess whether the individual involved had an emergency medical
condition which had not been stabilized, and provide a report on its
findings. Except in the case in which a delay would jeopardize the
health or safety of individuals, the Secretary shall request such
a review before effecting a sanction under paragraph (1) and shall
provide a period of at least 60 days for such review. Except in the
case in which a delay would jeopardize the health or safety of individuals,
the Secretary shall also request such a review before making a compliance
determination as part of the process of terminating a hospital’s
participation under this title for violations related to the appropriateness
of a medical screening examination, stabilizing treatment, or an appropriate
transfer as required by this section, and shall provide a period of
5 days for such review. The Secretary shall provide a copy of the
organization’s report to the hospital or physician consistent
with confidentiality requirements imposed on the organization under
such part B.

(4) Notice
upon closing an investigation.—The Secretary
shall establish a procedure to notify hospitals and physicians when
an investigation under this section is closed.

(A) a medical
condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in—

(i) placing the health
of the individual (or, with respect to a pregnant woman, the health
of the woman or her unborn child) in serious jeopardy,

(i) that there is
inadequate time to effect a safe transfer to another hospital before
delivery, or

(ii) that transfer
may pose a threat to the health or safety of the woman or the unborn
child.

(2) The term “participating hospital” means a hospital that has entered
into a provider agreement under section 1866.

(3)(A) The term “to stabilize” means, with respect to an emergency medical
condition described in paragraph (1)(A), to provide such medical treatment
of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition
is likely to result from or occur during the transfer of the individual
from a facility, or, with respect to an emergency medical condition
described in paragraph (1)(B), to deliver (including the placenta).

(B) The term “stabilized” means, with respect to an emergency medical condition
described in paragraph (1)(A), that no material deterioration of the
condition is likely, within reasonable medical probability, to result
from or occur during the transfer of the individual from a facility,
or, with respect to an emergency medical condition described in paragraph
(1)(B), that the woman has delivered (including the placenta).

(4) The term “transfer” means the movement (including the discharge) of
an individual outside a hospital’s facilities at the direction
of any person employed by (or affiliated or associated, directly or
indirectly, with) the hospital, but does not include such a movement
of an individual who (A) has been declared dead, or (B) leaves the
facility without the permission of any such person.

(5) The term “hospital” includes a critical access hospital (as defined
in section 1861(mm)(1)).

(f) Preemption.—The provisions of this section do not preempt any State or local
law requirement, except to the extent that the requirement directly
conflicts with a requirement of this section.

(g) Nondiscrimination.—A participating hospital that has specialized capabilities or
facilities (such as burn units, shock-trauma units, neonatal intensive
care units, or (with respect to rural areas) regional referral centers
as identified by the Secretary in regulation) shall not refuse to
accept an appropriate transfer of an individual who requires such
specialized capabilities or facilities if the hospital has the capacity
to treat the individual.

(h) No Delay
in Examination or Treatment.—A participating
hospital may not delay provision of an appropriate medical screening
examination required under subsection (a) or further medical examination
and treatment required under subsection (b) in order to inquire about
the individual’s method of payment or insurance status.

(i) Whistleblower
Protections.—A participating hospital
may not penalize or take adverse action against a qualified medical
person described in subsection (c)(1)(A)(iii) or a physician because
the person or physician refuses to authorize the transfer of an individual
with an emergency medical condition that has not been stabilized or
against any hospital employee because the employee reports a violation
of a requirement of this section.

[298]
See Vol. II, P.L. 108-173, §945,
with respect to an emergency medical treatment and labor act technical
advisory group and §1011, with respect to the Federal reimbursement
of emergency health services furnished to undocumented aliens.

[299]
P.L. 112-40, §261(a)(3)(E),
struck out “Peer review” and inserted
“Quality improvement”, applicable
to contracts entered into or renewed on or after January 1, 2012.

[300]
P.L. 112-40, §261(a)(3)(C),
struck out “utilization and quality control peer review”
and inserted “quality improvement”, applicable to contracts
entered into or renewed on or after January 1, 2012.

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